Siskind Summary: Matter of Dhanasar – the New NIW Standard

Posted on: December 27th, 2016

After nearly two decades, the Administrative Appeals Office has eliminated the much-criticized NYSDOT standard for EB-2 National Interest Waiver green card cases and replaced it with a new much more realistic one for applicants. According to the AAO

USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

The appeal was for a Mr. Dhanasar who is an aerospace engineer engaged in research and teaching and who self-petitioned for a National Interest Waiver.

Subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act (which creates the EB-2 employment-based green card category) makes National Interest Waiver-based immigrant visas available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Normally, EB-2 applications must be accompanied by a labor certification documenting that an employer has tested the job market and can show there are no able, willing, qualified and available applicants to fill the position. Applicants must therefore have a willing employer go through the process of advertising the position and meeting prevailing wage requirements and if someone with the minimum qualifications for the job applies, the application will be denied even if the applicant’s qualifications are much stronger.

Under INA Section 203(b)(2)(i) “may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”

The AAO described the 1998 NYSDOT standard that is being vacated as follows:

The NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of “substantial intrinsic merit.” Id. at 217. Next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.” Id. Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national.

In Dhanasar, the AAO notes first that the word “intrinsic” in NYSDOT is too subjective. The AAO also believes the second prong of NYSDOT requiring the benefit to be “national in scope” is construed too narrowly by focusing on the geographic impact of the benefit.

But the AAO found the third prong of NYSDOT – that the petitioner must “demonstrate that the national interest would be adversely affected if a labor certification were required” as being the most problematic. The AAO describes four attempts in NYSDOT to explain the third prong including one stating that applicant must show “influence in the field.” In a footnote, the AAO noted that this “influence” standard looks to past success to predict future benefit, but while stating there is some merit in this, there are some talented individuals for whom past achievements are not the best predictor of future success.

The AAO also found that trying to make applicants show a national interest if they skip a process to recruit unidentified US workers doesn’t make sense – particularly for self-employed individuals such as entrepreneurs. The AAO criticized the concept of showing a harm to the national interest if a labor certification is bypassed, something that it noted is not in the statute and unnecessarily narrows the Secretary of Homeland Security’s discretionary authority under the INA.

Thus, the AAO is vacating NYSDOT and adopting a new framework that it believes “will provide greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.”

Under the new standard, an NIW may be approved if “(1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” The AAO does note that USCIS still has the discretion to deny. However, it seems unlikely that one would win the third prong of Dhanasar and lose on a discretionary basis since the third prong is itself a matter of discretion.

“Substantial merit and national importance” – Prong 1

Under the new NIW first prong, the AAO notes that merit may be demonstrated in a wide range of areas including “business, entrepreneurialism, science, technology, culture, health, or education.” The AAO indicates that showing merit by quantifying economic impact is one way to meet the test, but that it is not required if other evidence of national importance is provided (and providing the examples of research, pure science and the furtherance of human knowledge as potentially enough). Another example offered of merit is where there are national or even global implications in a particular field such as those resulting from improved manufacturing processes or medical advances.

The new standard also deliberately avoids focusing on geographic terms. The AAO is instead interested in “broader implications.” In particular, this passage discussing job-creation makes the point and also points to much more robust use of the category by entrepreneurs:

Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.

“Well positioned to advance the proposed endeavor” – prong 2

To demonstrate this second prong, AAO will look at factors including, but not limited to “the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or

individuals.” Importantly, AAO is not expecting petitioners to show that their endeavors are more likely than not to ultimately succeed. Instead, they need only show by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

“On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification” – prong 3

The AAO is directing USCIS examiners to balance the interests of having a labor certification process to protect domestic workers against other factors deemed to be in the national interest. USCIS should consider factors such as

“whether, in light of the nature of the foreign national’s qualifications of proposed endeavor, it would be impractical either for the foreign national to secure a job offer of or from the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. We emphasize that, in each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.”

Key here is that unlike NYSDOT, the applicant need not sure a harm to the national interest if a labor certification is not conducted. In a footnote, the AAO significantly notes that

because of the nature of the proposed endeavor, it may be impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his or her own, to secure a job offer from a U.S. employer thus making the labor certification problematic. This observation should greatly improve the outlook for entrepreneurs interested in using the NIW category to pursue a green card.

The AAO then went on to analyze Dhanasar’s work and his experience. The AAO found that the research work met the new standard and that was enough to order the denial remanded back to the Service Center. As an aside, the court declined to sign off on Dhanasar’s argument that his work teaching a STEM field was enough to qualify.